Indsoft Pty Ltd (Migration)
[2019] AATA 5558
•26 August 2019
Indsoft Pty Ltd (Migration) [2019] AATA 5558 (26 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Indsoft Pty Ltd
CASE NUMBER: 1510096
DIBP REFERENCE(S): BCC2013/808336 OPF2014/468 opf2015/3867 OPF2015/3868
MEMBER:Warren Stooke AM
DATE:26 August 2019
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Statement made on 26 August 2019 at 5.56pm
CATCHWORDS
MIGRATION – standard business sponsorship barred – providing evidence about performing specified duties – duties of creating or updating websites and logos – sponsored position of Graphic Pre-press Trades Worker – bar now extinguished – duties now performed through computer applications – obvious overlap between the two occupations – no significant or deliberate breach of condition – decision under review set aside
LEGISLATION
Migration Act 1958, s 140M
Migration Regulations 1994, rr 2.89 – 2.94STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration to take an action under s.140M of the Migration Act 1958 (the Act) in relation to the applicant’s sponsorship.
The applicant was approved as a standard business sponsor on 12 June 2013. On 9 July 2015, the delegate decided to bar the sponsor for 24 months from sponsoring more people for Temporary Work (Skilled) (subclass 457) visas under s.140M on the basis that the sponsor provided no evidence as to who will be performing the duties of creating or updating websites and logos when the business does receive this work, which the delegate considered to be beyond the scope of the sponsored position of a Graphic Pre-press Trades Worker as per ANZSCO code 392211.
The applicant appeared before the Tribunal on 25 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the nominee, Mr Aman Marwah.
The applicant was represented in relation to the review by its registered migration agent. The representative attended the Tribunal hearing.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was that the nominee had admitted to the department that he had performed graphic design work.
The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision not to take one or more of the actions specified in s.140M.
CONSIDERATION OF CLAIMS AND EVIDENCE
Sections 140K, 140L and 140M of the Act provide for the imposition of sanctions on approved sponsors in certain circumstances.
Under s.140M, if prescribed circumstances exist, the Minister (and the tribunal on review) may take one or more of the following actions:
·cancelling the sponsorship approval in relation to a class to which the sponsor belongs;
·cancelling the sponsorship approval for all classes to which the sponsor belongs;
·barring the sponsor for a specified period from sponsoring more people under the terms of any existing approval; and
·barring the sponsor for a specified period from making future applications for sponsorship approval in relation to one or more classes of sponsor.
For these purposes, the circumstances are prescribed in r.2.89 - r.2.94B and include circumstances in which the Minister, or tribunal on review, is satisfied there has been: a failure to satisfy a sponsorship obligation; provision of false or misleading information; sponsorship application or variation criteria no longer met; a contravention of the law; unapproved changes to a program; a failure to pay additional security; a failure to comply with certain terms of an agreement; or a failure to pay medical and hospital expenses.
Where a prescribed circumstance has been found to exist, the regulations prescribe criteria that must be taken into account when determining what action, if any, to take: r.2.89 – r.2.94B. These criteria, as they relevantly apply to the circumstances of this case are set out in the attachment to this decision.
The applicant provided evidence that the sponsored position of Graphic Pre-press Trades Worker included the following tasks:
a.using computer applications to generate images, text, layouts and impositions for print and other visual media displays;
b.operating computer screen-based equipment for scanning, colour separation, colour correction, masking, creative design, combining, imposing, retouching, and other processes used to transfer copy to film and produce film for plate, digital output and cylinder productions
c.evaluating printed proofs, checking and correcting them for quality.
The applicant stated that his business does not use offset printing equipment, but rather computer based software that has displaced the older offset technology. As such, the business does not perform offset printing or use carbon printing, where the modernised process includes the use of toners and ink cartridges.
The applicant stated that the business undertakes work in both the retail and commercial industrial sectors and that the work description, as work performed by the business, included the printing of business cards; flyers; posters; and general signage.
The applicant stated that the business operates out of a factory complex in Springvale and has sophisticated equipment that includes a Xerox Digital Colour Machine; a Roller Signage printer and folder binding and laminating machines.
The applicant gave evidence that the business has a turnover of $430,000.
The applicant gave evidence that he is the Manager of the business, which he had originally established and then sold to Sotech in 2016. He stated that he has a Master’s degree in Accounting and has 20 years’ experience, including worked performed with the Coles supermarket chain.
The applicant gave evidence that the Department had contacted him over the phone and spoke to both himself, as the owner and the nominee. He stated that the business comprised of himself and the nominee and that the nominee had been with the business since its start-up.
The applicant gave evidence that the award applying to the nominee is the Graphic Arts Modern Award 2010 and that the nominee was provided with an Information Statement at the commencement of employment consistent with the requirements of the Fair Work Act 2009.
Further, the applicant stated that he advertised for the position and that he selected the nominee because all of the other applicants were not experienced and were students
The applicant stated that the work is procured from the clients and then the scope of the job is provided to the nominee and delivered, which includes making up the work and then printing.
The applicant gave evidence that the nominee has both a Certificate and Diploma in Graphics.
The Tribunal was advised that the nominee, who commenced with the business in 2013, works 38 hours per week and receives a current remuneration package of $54,000 per annum, together with a superannuation payment of 9.5%, which is contributed into HostPlus superannuation fund.
The applicant stated that he works in the business part-time, usually for 3 days and draws a salary of between $30,000 and $35,000 per annum.
Evidence of the Nominee
The nominee gave evidence that he joined the business after receiving his visa on 6 November 2013 and that his role was as a pre-press operator, engaged in printing, designing, binding, where the clients include the Victorian Institute of Accounting, Real Estate agents and restaurants.
The nominee stated that he had been in Australia for a period of 14 years and that he is married.
The nominee stated that he uses a Fuji Xerox Colour printer; guillotine machine; a Roller signage printer; a binding machine; and a folding machine.
The nominee stated that he has no contact with clients in his role.
The nominee gave evidence that he was visited by Departmental Officers at his workplace, who asked for details about his duties, including printing; pre-press and design work
Submission of the Representative
The representative stated that the bar imposed on the applicant from 9 July 2015 for a period of 2 years should not have been imposed and that the bar is now extinguished, including the adverse material.
The representative submitted that after the bar expired the applicant’s 457 Visa was cancelled because the Department took the view that the applicant performed duties outside the parameters, including performance of web design, which was regarded as not consistent with a Graphic Pre-press worker classification under the ANZSCO descriptor code 392211.
The representative referred to a decision of the Tribunal concerning the visa cancellation of the nominee in Case Matter 1607552 and the findings made by the Member at paragraphs 74 to 78; wherein it was found to be a ‘grey area’ regarding the duties of a graphic designer and Pre-press graphic worker ant that no significant or deliberate breach on the part of the nominee had occurred. Further, the Member directed the re-instatement of the applicant’s visa (the nominee) in that Case Matter.
Further, it was submitted that in Case Matter 1607552 the Member dealt with the bar in the decision, which was handed down on 25 November 2016.
The representative submitted that even if the Department was right, the bar has expired and he stated that the applicant was employed as a Pre-press Graphic worker, that included binding and cutting, which is not within the scope of Graphic Designer but is within the job scope of a Pre-press Graphic Worker.
It was submitted that the nomination was only refused because of adverse information and the bar is still is operational [although expired].
Further, it was submitted that the Tribunal should disregard the prior information, which was based upon evidence, accepting that in part the applicant does perform graphic design through computer applications.
The representative asked that the Tribunal to find that in Case Matter 1510096 that the bar had expired in 2017.
Does a circumstance for the taking of an action exist?
In the present case, the delegate found that the applicant was performing duties that were outside the scope of duties described in ANZSCO code 392211 for a Pre-press Graphic Worker, which led to the imposition of a sponsorship bar from 9 July 2015 for a period of 2 years.
Failure to comply with certain terms of a special program or professional development agreement: r.2.94A
The Minister may take one or more of the actions in s.140M if the sponsor has not complied with a term or condition of the special program or professional development agreement in relation to which the sponsor was approved: r.2.94A(2). For sponsorship applications made before 24 November 2012, only special program sponsors, not professional development sponsors, can be barred or have their sponsorship cancelled on this ground.
Consistent with the decision of the Member in Case Matter 1607552, the Tribunal, as currently constituted, agrees with the following finding in that Case Matter [(Migration) [2016] AATA 4709 (25 November 2016)], as follows:
“73.The applicant’s visa was subject to 8107 condition and, based on his oral evidence, I am satisfied that he was aware of the visa conditions attached to his subclass 457 visas.
74.The ground for cancellation arose because the applicant had not worked only in the occupation listed in the applicant’s most recently approved nomination, but has also carried out work as a Graphic Designer.
75.I accept the applicant’s claims that there is a fine line between occupations of Graphic Pre Press Trades Worker and Graphic Designer and that duties listed in the ANZSO are not exhaustive but only indicative list of duties for these occupations. I further accept that there is an obvious overlap between the two occupations as both involve the design of images and texts for reproduction.
76.I accept that the applicant performed complimentary work in addition to his primary duties at the sponsoring business. I accept that tasks of Graphic Pre Press Trades Worker and Graphic Designer are interrelated despite different level of education required for these two occupations.
77.I am satisfied on the evidence before me that the business retained the services of Mr. Syed Hussaini to undertake web design and that the visa holder was the only person employed to perform the role of Graphic Pre Press Trades Worker at the relevant time.”
78.For this reason I am satisfied that in this instance, there was no significant or deliberate breach of condition 8107. This is the consideration that favours the reinstatement of the applicant’s visa.
Further, the Tribunal notes that the ANZSCO Code 392211 for a Pre-press Graphic Worker does not reflect the technological advances that have been made in the area of graphics, which have rendered an industry that is reliant upon computer based technology that has now displaced conventional printing, albeit that the product outcome is substantially the same. As such, the Tribunal does not accept that an imposition of a bar on the sponsor was reasonable having regard for the evidence of the duties performed by the applicant. However, given the period of the bar period has expired, the decision of the Tribunal, in these circumstances, will provide a correction of the record and remove any potential stigma associated with the imposed bar, should the applicant seek to support any future application for sponsorship.
Accordingly, the Tribunal is satisfied that the prescribed circumstance in r.2.94A do not exist for the purpose of s.140M of the Act.
Action to be taken
As the Tribunal finds that none of the circumstances for s.140L(1)(a) exist, it follows that the power to take an action under s.140M does not arise.
Considering the totality of the circumstances, and having regard to the prescribed criteria the Tribunal finds that none of the actions under s.140M should been taken.
Decision
The Tribunal sets aside the decision under review and substitutes a decision not to take one or more of the actions specified in s.140M of the Migration Act 1958.
Warren Stooke AM
MemberATTACHMENT – Extract from the Migration Regulations 1994
2.94A Failure to comply with certain terms …
…
(3) For paragraph 140L(1)(b) of the Act, the criteria that the Minister must take into account in determining what action (if any) to take under section 140M of the Act in relation to the circumstance mentioned in subregulation (2) are:
(a) the past and current conduct of the person in relation to Immigration; and
(b) the extent to which the person has not complied with the…agreement; and
(c) the number of occasions on which the person has failed to comply with the…agreement; and
(d) any other relevant factors.
…
Key Legal Topics
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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Statutory Construction
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